### No. 80-270 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

PETER EVANGELINE and DIMITRI EVANGELINE Plaintiffs and Appellants,

BILLINGS CYCLE CENTER, Defendant and Respondent.
Appeal from: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone. HonorableWilliam J. Speare, Judgepresiding. Counsel of Record: For Appellants: Nye Law Firm,Billings, Montana Jerrold L. Nye argued, Billings, Montana For Respondent: McNamer, Thompson & 

### Cashmore, Billings,Montana Charles R. Cashmore argued,Billings,Montana

Submitted: March 25, 1981 Decided: April 15, 1981.Mr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. Plaintiffs, father and son, brought an action in the DistrictCourt of the Thirteenth Judicial District, each seeking damages for personal injury. Jury trial resulted in
a defendant's verdict. Plaintiffs appeal. Plaintiff, Peter Evangeline, hereafter referred to as "father", purchased a used 1975 Yamaha dirtbike from defendant
on June 16, 1978. The bike was purchased for the use of DimitriEvangeline, hereafter referred to as "son". One day following the purchase the son, then age 12, attempted to ride the bike around an oval track located at plaintiffs' home. On two occasions the son had the bike slideout from under him due to his inability to slow the bike. He testified thathe did not know whether the brakes worked. The record 

### isunclear about what caused these spills. The father then tried to ride the bike. He too spilled for some unexplained reason. He testified thathe did not know if his footwas on the brake. The father then remounted the bike for a second try. As the father was approaching a curve, he looked down to 

### see if his footwas on the brake and the 

### rest isbest described inhis own words: "By the 

### time I looked up I had already gotten to the lateralditch-- thatbottom one--and I couldn't getoutof it." "And by the 

### timeI looked up, 

### itwas too late todo anything because I hit that ditch, and I was flying in the air." The father went to the hospital, and the following day the son attempted toride again, this 

### timein the company of
a friend. The sequence of events preceding this second accidentwas related by the son attrial: "We started racing there when I went down to the Hesper ~oad--towardthem ditches. I looked down to see ifmy footwas on the thing, and by that time I was atthe ditch. I tried to lean the bike over, and the frontwheel caught in that first ditch; and 

### meout onto the road and my bike into the second ditch." The son was injured. The father and son brought this action in strictliability, and alternately, innegligence. The trial court reserved ruling on 

### strict liabilityuntil hearing allof the evidence. The court then decided to submit the case on negligence only. The jury was also instructed on the affirmative defenses of contributory negligence and assumption of risk. On special findings, the jury concluded that the negligence of each plaintiff was a proximate cause of each accident. The jury further found that the defendant was not negligent. Plaintiffs claim the following error: 

### I. Failure of the trial court to submit strictliability. 2. Failure of the trial court tomake a pretrial ruling on strictliability. 3. The instructions on assumption of risk

### wereerroneous. 4. The trialcourt's comments during 

### trial were prejudicial. The trial courtmay reserve ruling on strictliability until hearing evidence, as the evidence may 

### well determine what liability theories are appropriate. Wedo not here rule on the applicability of strictliability to a used product. We resolve this question on factual issues and, therefore,
no authority 

### is cited. If an instruction on strictliability had been given under the evidence adduced attrial, the resultwould necessarily have been the same.Plaintiffs claim that defective brakes were the result of improper brake adjustment. No other defect can be found inthe evidence. Weareasked to hold that defective adjustment of brakes 

### isdifferent from negligent adjustment of brakes. We feel that, given these facts, the proof would be the same for either strictliabilityor negligence. The jury found defendant was not negligent inadjusting the brakes. The same finding would preclude defect arising out of the brake adjustment. The testimony of both the father and son fails to establish a causal relationship between claimed brake maladjustment and accident. In each case the bike hita ditchwhile the rider was looking down to see if he was engaging the brake. Wehold thatplaintiffs could not have- been prejudiced 

### by the court's failure to instruct on strictliabilitybecause: (1)In thisparticular case the jury's finding of no negligence
on the part of the defendant inadjusting the brakes would foreclose a finding of defectby reason of brake maladjustment. (2) Plaintiffs did not carry their burden to establish a causal relationship between brake maladjustment and the accident in that the testimony fails to prove that the accidentwas caused by defectivebrakes rather than caused by the bike hitting the ditch ata 

### time the driver was
unattentive

# . Likewise, since the jury found the defendant tobe not negligent, any error ininstructions on affirmativedefenses would be harmless. Therefore, we need not review the instructions pertaining to assumption of risk. Plaintiff claims error in the trial court's following remark to trial counsel:"THE COURT: Well, you managed toconfuse

### me. Is the purpose--are you trying to impeach thisman or what?

### " Plaintiffs-didnot ask for a mistrial, nor did counsel request the court for an admonition. Further, the remark 

### is not sufficiently prejudicial torequire a new trial. The judgment 

### is affirmed.

We concur:

L-- Justices